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State v. Athorn

Decided: October 14, 1966.


Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.


We conclude that the judgment of conviction of misconduct in office and extortion entered against defendant in the trial court should be affirmed.

Defendant first argues that he was prejudiced by the action of the trial court with respect to alleged prior inconsistent statements of the state's witnesses, Constantine Jolas and Henry Dubose, which were used by the defense for the purpose of affecting the credibility of those witnesses. During the cross-examination of the witness Jolas, he was confronted with such a statement and he admitted his signature thereto. Defense counsel then asked whether the witness made the statement and as a part of this inquiry he commenced reading portions thereof. At this point the examination was interrupted and a lengthy colloquy occurred between the court and counsel as to whether the statements were "voluntary" and upon whom the burden of proof rested as to this issue. At first the court made a tentative ruling (hereinafter discussed) but later suggested that it would like to have further time to reflect on the matter and requested counsel to present

it with "some authority." Defense counsel then stated "I agree with you, Judge * * * I wanted some time * * *." He then agreed with the court that Jolas would be removed from the stand, another witness put on, and the cross-examination of Jolas on the three statements allegedly made by him would be resumed the next day.

Defendant now asserts this action was prejudicial because it "prevented him from focusing the attention of the jury on the testimony of the witness and his demeanor at the moment of confrontation." We deem this point to be wholly without merit. On the following day Jolas was thoroughly and exhaustively cross-examined on all these statements and they were ultimately received in evidence. Thus defendant had full use of the inconsistent statements in his attempt to impeach the credibility of the witness. Furthermore, defendant cannot now complain about a course of action which he "wanted" and to which he acquiesced.

In the colloquy referred to above, the prosecutor asserted that all these statements had been obtained "under force, duress or mental coercion." It was at this point that the court tentatively ruled that the burden was upon defendant to prove the voluntariness thereof and that "it would hold further cross-examination of Jolas until defendant produced the witness who took the statements and made such a 'preliminary' showing." However, upon further reflection the court did not follow this procedure. Rather, as noted above, defendant was permitted to cross-examine Jolas thoroughly upon the statements he signed before any defense witnesses were called. The same course was followed as to the State's witness Dubose. Both admitted their signatures but denied having made the inconsistent parts of the statement. Thereafter defendant, as a part of his case, called the individual who took the statement and the witnesses who were present at the time of the taking and they testified fully to all the attendant circumstances.

The procedure followed by the trial court was in full compliance with established legal principles. When a witness

acknowledges his signature to an alleged prior inconsistent statement, he may be cross-examined as to the facts set forth therein even though he denies having made the statement. Miller v. Henderson, 41 N.J. Super. 15, 23-24 (App. Div. 1956), certification denied 22 N.J. 229 (1956). However, upon such a denial the statement may not be admitted into evidence until the party who wrote it out or someone else having knowledge of the facts is first called to testify that the statement contained a true account of what the witness had said. Ibid.; Altieri v. Public Service Railway Co., 103 N.J.L. 351 (E. & A. 1927); Wassmer v. Public Service Electric & Gas Co., 122 N.J.L. 367, 373 (E. & A. 1939).

After the introduction of the testimony of the defense witnesses as to the circumstances surrounding the taking of the statements, Jolas and Dubose were called as rebuttal witnesses and testified, without objection, to their version of those circumstances. Defendant now argues that this rebuttal evidence should have been excluded by the trial judge and that its introduction "forced the introduction of" a "collateral issue" which prejudiced him. While we are unable to find any authority in this State specifically treating with the question thus raised, we are of the view that defendant's position is without merit.

In Johnson v. Stoveken, 52 N.J. Super. 460, 463-464 (App. Div. 1958), the court sustained the action of the trial court in refusing to allow defendant to ask plaintiff on cross-examination for her explanation of an alleged discrepancy between her trial testimony and testimony given at a prior hearing. In so doing the court noted that "In any case, however, the right to explain is that of the witness sought to be impeached." (Emphasis added)

In State v. Dichter, 95 N.J.L. 203, 206 (E. & A. 1920), the court upheld a trial judge who prohibited a witness from attempting, on cross-examination, to explain the circumstances attendant upon alleged prior inconsistent statements, when the witness denied making the statements, until ...

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